R v Egan - [2008] NZCA 102

IN THE COURT OF APPEAL OF NEW ZEALAND
CA548/07
[2008] NZCA 102
THE QUEEN
v
SHANE PAUL EGAN
Hearing:15 April 2008

Court:Hammond, Williams and MacKenzie JJ
Counsel:P G Mabey QC for Appellant

M D Downs for Crown

Judgment:28 April 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by MacKenzie J)
The Offending
[1]       The appellant was the subject of a search warrant executed at his home in March 2006. As a result of that search, he was charged with a number of counts involving possession of methamphetamine for supply, and related offences. He was released on bail. In July 2006 he was involved in a motor cycle accident in Mt Maunganui and was knocked unconscious. Police attending the scene, and looking for identification in his belongings, found a quantity of methamphetamine and related items. He faced a number of charges arising from that discovery.
[2]       The facts of the March offending were that in the appellant’s house, which was protected by security cameras, detectors and a radio scanner tuned to the police channel, police located 47 grams of methamphetamine, $25,330 in cash, and a number of point bags containing relatively small quantities of methamphetamine (less than 1 gram). There was evidence in the garage of the extraction of pseudoephedrine, including equipment and chemicals used in the process. Also located was 1,329 grams of Contac NT, capable of producing over 500 grams of pseudoephedrine hydrochloride, which in turn could have produced between 265 and 398 grams of methamphetamine. The statement of facts also referred to the location of four firearms and ammunition in the same briefcase as the Contac NT. The July incident involved the finding in the appellant’s backpack of 37.6 grams of methamphetamine, $25,300 in cash, electronic scales, and tabs of LSD. Later a further $920 cash was found in the appellant’s clothes.
[3]       The appellant came to trial first on the charges arising from the July discovery. For that offending he faced one charge of possession of methamphetamine for supply (on which he was convicted following jury trial), one charge of possession of lysergide, and one charge of possession of utensils, namely a methamphetamine pipe (to both of which counts he pleaded guilty at the start of the trial). He was sentenced by Andrews J in July 2007. For the March offending, the appellant pleaded guilty to one count of producing and one count of possession of the pre-cursor substance pseudoephedrine, one count of possession of methamphetamine for supply and one count of supply of methamphetamine. He was sentenced by Ronald Young J on 18 September 2007: HC HAM CRI-2006-019-1753. This appeal is against the latter sentence.
The Sentencings
[4]       Andrews J, in sentencing for the July offending, took a starting point on the charge of possession for supply of three years six months imprisonment, which she increased to three years and nine months to take account of the fact that the appellant was on bail at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Egan

Details

AGLC: R v Egan [2008] NZCA 102
Case: [2008] NZCA 102
Decision Date: 28 April 2008

CaseChat Overview and Summary

The case of R v Egan involves an appeal against a sentence imposed by Ronald Young J on Shane Paul Egan, who was found guilty of various drug-related charges, including possession and supply of methamphetamine, and the production and possession of precursor substances for the manufacture of methamphetamine. The appeal was heard by the Court of Appeal of New Zealand, with Hammond, Williams, and MacKenzie JJ delivering the judgment. The appellant was represented by P G Mabey QC, while the Crown was represented by M D Downs.

The primary legal issue before the Court was whether the sentence of nine years, imposed for the March and July drug-related offending, was manifestly excessive. The appellant argued that the sentence was disproportionately high compared to the gravity of the overall offending, citing several cases to support his submission that the appropriate sentence should be in the range of six to seven years. The Crown contended that the sentence imposed was not manifestly excessive and reflected the overall criminality of both the offending and the offender.

The Court considered the methodology employed by Ronald Young J in sentencing the appellant and found that the total sentence of nine years was within the permissible range. The Court took into account the total amount of methamphetamine involved, the offending while on bail, the presence of pseudoephedrine and the extraction equipment, previous convictions for cannabis offences, and the presence of firearms. The Court also considered the mitigating factor of the appellant's guilty plea to part of the total offending. The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

The Court of Appeal of New Zealand, in dismissing the appeal against sentence, confirmed the sentence imposed by Ronald Young J and found it to be within the permissible range, reflecting the overall criminality of both the offending and the offender. The Court emphasised the importance of considering the totality of the offending and the various aggravating and mitigating factors in determining the appropriate sentence.

Orders